Women and Law in Colonial India

Women and Law in Colonial India is a social history, written by Janaki Nair. This covers the entire period of British rule, till 1947. This shows how during the colonial rule there was more deprivation  for women, within the framework of deprivation faced by Indian population. At the suggestion of Warren Hastings, by whose orders it had been compiled, Halhed  translated the Hindu legal code from a Persian version of the original Sanskrit. And she quotes “ A man, both day and night, must keep his wife in so much subjection that she by no means be mistress of her own action if the wife have her own free will, not withstanding she be sprung from a superior caste.” Though the British administration, in their own reason to govern India, had developed legal structure and judicial system in the whole of India, they were very much aware of the caste systems and hold of the religious masters and priests on the life of the common men in India, and they gave into many concessions, which had a bearing on the women. It took 40 years for the British to outlaw the Sati Pratha ( widow immolation on husband’s death ) from the start of recording it. Between 1815 to 1824, in 10 years 6632 cases were reported, in Bengal, Madras and Bombay (Mumbai), of which 90% occurred in Bengal, even when anti-Sati law was already enacted. The debate over Sati, bought to the foreground the deplorable position of widows in the upper castes particularly, to whom death seemed to be a preferable choice. Quote “ In part, the terrible conditions to which Indian patriarchy condemned the widow betrayed  deep-seated fear of voracious female sexual appetites, unrestrained by marriage.” The prohibition against the remarriage of widows was therefore only observed against upper caste Hindus. Marriage of minor underage girls were very common in India and even with British intervention the law that was passed was laughable. Husbands who consummated marriage with Girls under the age of 8 ( and later changed to under the age of 10 in 1850) were only punishable. Only in 1891 it was raised to 12.  The society was then guided by the famous principle of Manu “ her father protects her in childhood, the husband in youth, and her son protects her in old age, a woman does not deserve independence.” In 1925, 14 was fixed as the age of consent in extra-marital cases and 13 for marital cases. As per record female infanticide was most among certain tribes in northern and western India.  An 1841 report shows that in entire Kathihar in the Jhareja tribe there were 5760 boys against 1370 girls. Only in 1870, a law was passed introduced by Johon Strachey, prohibiting infanticide in North West Province, Punjab and Oudh. But the penal provision of the law was a paltry, fine of Rs 1000/-, six months imprisonment or both. With the advent of science, and availability of means to know the gender much before the birth, the issue is continuing even today, again in much larger scale in North and West India. The book also throws light on various aspects of labor laws, which gave no inadequate support to women. The two council acts, 1892 and 1909 made no mention of female franchise, as two thresholds, property and literary qualification, worked effectively well to keep the women out of the electoral rolls. Madras was the first in 1920 followed by Bombay in 1921 to have granted specifically the women the right to vote, followed over years by other provinces. There was no universal adult suffrage in India, even in the Government of India Act, 1935. Women as well as men got this right only after independence. Coming to situation after independence from the British rule, the book points out the inherent and subtle inconsistency between  Article 15 and Article 25(1) of the Indian constitution. Article 15 ensures , among other things, indiscrimination based on gender. But article 25 gives freedom to freely profess practice and propagate religion. And the discrimination against women are perpetrated in the name of religion. The book is an interesting reading from cover to cover.